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Aboriginal Title and Rights: Foundational Principles and Recent Developments ABORIGINAL TITLE AND RIGHTS: FOUNDATIONAL PRINCIPLES AND RECENT DEVELOPMENTS Maria Morellato,Q.C. Mandell Pinder 2009 Constitutional & Human Rights Conference The McLachlin Court’s First Decade: Reflections on the Past and Projections for the Future June 19, 2009 – Ottawa, Ontario From Annual Review of Civil Litigation 2008 eds. The Honourable Mr. Justice Todd L. Archibald, and Mr. Justice Randall Scott Echlin Reprinted by permission of Carswell, a division of Thomson Reuters Canada Limited TABLE OF CONTENTS I. Introduction ......................................................................................................................... 1 II. The Source and Substance of Aboriginal Title ................................................................... 1 A. The Nature and Scope of Aboriginal Title as Defined by the Supreme Court of Canada in Delgamuukw .......................................................................................... 4 B. The Unique Nature of Aboriginal Title and Its Inherent Limits ............................. 5 C. The Interpretation of Section 35 and its Purpose .................................................... 6 D. The Infringement and Justification Analysis Pursuant to Section 35 ..................... 8 (i) Is there a valid Legislative Objective? ........................................................... 9 (ii) Has the Honour of the Crown Been Upheld in Light of its Fiduciary Duty? 9 E. The Implications of R. v. Marshall and R. v Bernard ........................................... 11 F. The Implications of Tsilhqot’in v. British Columbia ........................................... 12 III. Distinguishing Aboriginal Title and Practice-Based Rights ............................................. 18 A. The Distinct Legal Tests for Proving Different Kinds of Aboriginal Rights ....... 20 B. The Aboriginal Right to Harvest Timber .............................................................. 21 IV. The Crown‟s Duty to Consult and Accommodate Aboriginal and Treaty Rights ............ 22 A. The Scope and Content of the Duty to Consult and Accommodate ..................... 25 B. Satisfying the Duty to Consult and Accommodate ............................................... 26 C. Haida Applied: Court-Supervised Consultation and Accommodation Negotiations .......................................................................................................... 28 D. The Duty to Consult and Accommodate in the Treaty Context............................ 34 E. The Duty to Consult and Accommodate in Respect of Privately-Held Lands ..... 40 F. Jurisdictional Issues and the Duty to Consult and Accommodate ........................ 42 V. Aboriginal Rights and Section 15 of the Charter ............................................................. 43 VI. Consulting and Accommodating Through the Inherent Right to Self-Governance ......... 45 A. Aboriginal Governance Rights As Recognized in Canadian Law ........................ 46 B. Accommodating Aboriginal Governance Rights .................................................. 52 VII. Conclusion ........................................................................................................................ 53 ABORIGINAL TITLE AND RIGHTS I. Introduction Canadian jurisprudence on Aboriginal title and rights, while still in its formative stages, has evolved rapidly in recent years, adding much needed shape and substance to legal discourse in this area. Nonetheless, Aboriginal law is complex and remains largely unknown for many practitioners. Furthermore, its ever changing character presents significant challenges for both solicitors and litigators specializing in the area. Accordingly, this paper provides an analytical review of leading Supreme Court of Canada and other cases with a view to highlighting essential first principles, recent developments and their implications. In doing so, it will become apparent that most areas of practice will be impacted by the legal principles articulated below. This paper will begin with a review of the scope and substance of Aboriginal title and rights, addressing both the source and unique nature of these rights. The paper then addresses the legal obligations imposed on the Crown by our common law in relation to the recognition and affirmation of these rights in our constitution. The implications of these rights on land and resource development will also be addressed, both with regard to proven and unproven Aboriginal rights as well as related jurisdictional issues. More specifically, the Crown‟s duty to consult and accommodate Aboriginal rights will be reviewed in detail, in light of the prevailing case law. Finally, this paper will examine the status of Aboriginal governance rights and their place in Canada‟s constitutional framework. II. The Source and Substance of Aboriginal Title The Supreme Court of Canada‟s decision in Guerin v. The Queen was the first decision of the Court to clearly articulate the nature of Aboriginal title as “a unique interest in land” which embodies “a legal right to occupy and possess certain lands.”1 Previous jurisprudence described Aboriginal title as “a personal usufructuary right,” thereby generating considerable legal debate concerning whether Aboriginal title embodied merely the right to use the land for certain activity bases purposes (such as hunting or trapping) or whether it constituted an interest in the land itself.2 Guerin finally established that there was indeed a proprietary aspect to Aboriginal title, although Dickson J. (as he then was) cautioned against defining Aboriginal title by applying the “somewhat inappropriate terminology drawn from general property law.”3 Of significance, Dickson J.‟s analysis in Guerin found its genesis in Calder where the Supreme Court of Canada recognized that the occupation of traditional lands by an Aboriginal society gave rise to an unique form of title in land which arose independent of a treaty, legislation or executive order. Mr. Justice Judson reasoned as follows: Although I think it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their 1 Guerin v. The Queen, [1984] 2 S.C.R. 335 at p. 339 [“Guerin”]. 2 See for example Calder et al v. Attorney General of Canada (1973), 34 D.L.R. (3rd) 145 [“Calder”]; Smith v. The Queen, [1983] 1 S.C.R. 554. 3 Guerin, supra at p. 383. - 2 - forefathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a “personal or usufructuary right.” What they are asserting in this action is that they had a right to continue to live on their lands as their forefathers had lived and this right has never been lawfully extinguished.4 Along a similar vein, Mr. Justice Hall reasoned that possession of tribal lands was in itself proof of “ownership”: In enumerating the indicia of ownership, the trial judge overlooked that possession is of itself proof of ownership. Prima facie, therefore, the Nishgas are the owners of the lands that have been in their possession from time immemorial...5 The analysis in Calder rested upon the prior possession of tribal territories by Aboriginal societies as the source of Aboriginal title. This focal point effectively foreshadowed the legal test for proving Aboriginal title, which was established almost 25 years later by the Supreme Court of Canada in the Delgamuukw case wherein Chief Justice Lamer identified Aboriginal use and occupation of traditional tribal territory, prior to the assertion of British sovereignty, as a central and necessary criterion of proof.6 The nature of Aboriginal title was further clarified in Roberts v. Canada,7 where Madam Justice Wilson, speaking for a majority of the Supreme Court of Canada, concluded that the law of Aboriginal title formed part of the federal common law. In doing so, she affirmed the unique character of Aboriginal title: In Calder v. A.G.B.C. this court recognized Aboriginal title as the legal right derived from the Indians‟ historic occupation and possession of their tribal lands. As Dickson J. (as he then was) pointed out in Guerin, Aboriginal title pre-dated colonization by the British and survived British claims of sovereignty. The Indians‟ right of occupation and possession continued as a “burden on the radical or final title of the sovereign: [cites omitted]...”8 (emphasis added) The significance of this passage is found not only in its affirmation of Aboriginal title as a right which survived the assertion of British Sovereignty but, as well, in its depiction of Aboriginal title as a co-existing burden on the underlying title of the Crown. 4 Calder, supra at p. 156. 5 Calder, supra at pp. 189-90. 6 Delgamuukw et al v. The Queen (1997), 153 D.L.R. (4th) 193 at para. 143 [“Delgamuukw SCC”]. 7 Roberts v. Canada (1989), 57 D.L.R. (4th) 197 [“Roberts”]. 8 Roberts, supra at p. 131. - 3 - In Paul v. Canadian Pacific Ltd.,9 the Supreme Court of Canada further reasoned that the Aboriginal title embodied more than the right to enjoy and occupy traditional lands: The inescapable conclusion from the court‟s analysis of Indian title up to this point is that the Indian interest in land is truly sui generis. It is more than the right to enjoyment and occupancy, although, as the Chief Justice pointed out in Guerin, it is difficult to describe what more in traditional property law terminology.10 (emphasis added) The
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